Balwant Rao and Others vs Kerba and Another

This is a second appeal in a suit for partition filed by the Plaintiff against the other members of. the Joint family claiming that he is entitled to one-third snare in the joint family property. The persons who are made parties to this suit are: the uncle of the Plaintiff and (2) nephew by a predeceased uncle. The Defendants resisted the suit on the ground that the Plaintiff was not entitled to any snare in the suit property as he was not a member of the joint family. The trial court recorded the evidence led by both the parties and passed a preliminary decree in favour of the plaintiff to the extent of one-third share in the joint family property. When the case came up in appeal, the appellate court remanded the case to the trial court to enable the Defendants to examine some witnesses who were not allowed to be examined in the first instance. When the case came to the trial court after remand, the (Defendants did not produce those witnesses whom they were directed to examine by the lower appellate court in its order of remand but desired to produce other witnesses whom the court declined to examine. Eventually, the trial court passed a preliminary decree in favour of the Plaintiff. This decree was confirmed by the lower appellate court. This appeal is against the judgment of the lower appellate court confirming the decree of the trial court.

The points urged by the learned advocate for the Appellant are:

(a) that the suit is liable to be dismissed because all the necessary parties in a suit for partition were not before the court;

(b) that the court was wrong in not having permitted the Defendants to examine the witnesses who were produced by them in court,

(c) and that it has not been established that Doula who is admittedly a member of the joint family has absconded as alleged by the Plaintiff or that his whereabouts were not known, therefore, he was also a necessary party to the suit and if his share also were taken into consideration, the Plaintiff would not be entitled to one-third share but only to one-fourth.

The first argument relating to necessary parties not being impleaded was elaborated upon toy the advocate for the Appellant by submitting before us that there were in addition to the parties before the court the mother of the Plaintiff who was entitled, to maintenance from out of the joint family property. It is also clear from the statement of P. W. 5 that Lakshman Defendant 2 has two unmarried daughters. It is well established that in a suit for partition not only those who are entitled to a share in the joint family, property but also those persons who are entitled to maintenance and also those persons for whose marriage provision has to be made from out the joint family property are necessary parties.

In this connection we would refer to R. 3 of the Rules under the Law of Partition of 1352 P. which is to the following effect:

In a suit for partition of joint family property all those persons who are entitled to a share in the joint family property, those who have a right of residence and those who are entitled to maintenance from out of the income of the joint family property and those who are entitled to the expenses of the marriage from out of the joint family property, shall be made necessary parties.

According to the above rule the mother who is entitled to maintenance & the daughters who are entitled to marriage expenses are necessary parties'' to the suit. It is not denied by the learned advocate for the Respondent that the mother is alive or that Laxman has daughters. Under the above circumstances, the mother and the daughters of Laxman are necessary parties; that these persons are necessary parties in a suit for partition has been decided by this Court in the case of -- Bapu Rao v. Hanmantha Rao 37 DLR 654 (A).

With regard'' to the statement made by the Plaintiff that Doula who was one of the members of the joint family had run away has not been established. We must point out that there is no mention in the plaint as to when he ran away and since what time his whereabouts are not known, and there not having been any specific mention as to when Doula ran away, the Defendants did not make any statement with regard to Doula. u/s 108, Evidence Act, unless it has been established that the whereabouts of Doula are not known and he has not been heard of for the past seven years before the date of the suit, the presumption would be that he is alive. If he is alive, he is a necessary party to the suit & the Plaintiff will not be entitled to a one-third, share in the joint family property but only to one-fourth, as admittedly he is an equal sharer.

The only point that has to be considered is as to whether the court was wrong in not allowing the Defendants to examine the witnesses whom they produced in court. On a perusal of the judgment relating to the remand, we find that the Sessions Judge had expressly stated that the Defendants would be entitled to examine only those witnesses whom, they had mentioned in the list and that they would not be entitled to examine any other witness. Under those circumstances we think the trial court was right in not allowing the Defendants to examine the witnesses produced in court. Inasmuch as we have come to the conclusion that the necessary parties were not before the court at the time of the suit, we must set aside the preliminary decree passed in this case and remand the case to the trial court with the following directions:

(i) that the trial court do make all those persons parties to the suit who have been declared to be necessary parties under the above rule, and after taking the statements of the persons who have been made parties take evidence that might be produced by the parties.

(ii) As regards Doula, the trial court should take a statement with regard to his whereabouts and as to whether he is dead or live, from the Plaintiff and after taking the statement of the Plaintiff and the reply of the Defendant in this regard, take evidence and if it comes to the conclusion that he is alive, he should be made a party.

After going through, the above procedure, the trial court should decide the case according to law.

We, therefore, allow this appeal, set aside the judgment of both the courts and remand the case to the trial court with the aforesaid directions. Costs of this appear will abide the result.